UK: The Cat And Mouse Race Towards A More "Digital Britain"

Last Updated: 2 March 2010
Article by Priscilla Wan

Digital Britain

"Digital Britain" – what springs to ones mind at the thought of this phrase? Digital developments within the economy of Britain or the promotion of investments within Britain's communication structure? The government hopes it is both.

For some time, Britain has been using various approaches to promote the digital communications infrastructure, with a view to protecting and rewarding individuals' works, whilst also maintaining a commercial and personal freedom.

Digital Economy Bill

This gives rise to the much debated Digital Economy Bill (the "Bill") now working its way through parliament. Drafted primarily to support and achieve the objectives of the Digital Britain White Paper (the "White Paper"), the Bill has raised many controversial issues.

With a focus of making Britain a country with next-generation strategies, (for example, the availability of faster internet connections for all), the Bill, on face value, seems to be promoting society's ability to connect to an array of information, knowledge and people worldwide.

However, the issue that has gathered the most column inches recently, is the provision relating to illicit peer-to-peer ("P2P") file sharing – the wrongdoings of copyright infringement.

The measures within the Bill give power to the Secretary of State for Business (currently Lord Mandelson) to oblige ISPs to monitor alleged copyright infringers and disconnect their internet connections, once a threshold of infringing has been exceeded. Such measures are argued to interfere with individuals' right to privacy and freedom of expression, thus possibly breaching human rights.

The Cat Race...

The government hopes that statistically, the Bill will reduce the number of illegal file sharers by 70%, thus protecting the interests of copyright holders, rewarding them for their work and promoting commercial activity within the industry. However, the loosely- drafted measures within the Bill indicate that the government may have taken the "stick" approach to the protection of copyright by focusing on punishment and sacrificing the potential human rights of individuals in favour of those copyright holders.

Copyrights Or Human Rights

When we access information, particularly online, do we actually know what information of ours is being used? For what purposes? By whom and how frequently? Such grey areas have made it difficult to draw a line in relation to protecting copyright owners and individual human rights to privacy

Take for example "Facebook", the social networking site, where friends and family can share their opinions and photos with others around the world on an almost "instant" basis. When we post photos on Facebook, we automatically grant a licence to Facebook for using our photos, such licence ends on the termination of our account or when our friends can no longer access that material. However, if this information has been shared with others, such as our friends, and they have not deleted this shared content, Facebook will still have a licence to these photos!

Recently, Facebook had tried to change its terms and conditions, granting it the right to use members' information on the site forever, even if individuals had terminated their account. This unilateral change caused such uproar within the community, that as a result, Facebook had to change their terms and conditions back to reflect that the licence would end on the termination of a member's account, (subject to it being shared on others' pages).

However, competing with the market and becoming more "digitally advanced" comes at a price, which often means giving away some of your privacy rights.

Businesses such as Facebook and Google have often changed their privacy settings and terms of use which will have an impact in relation to the rights and protection of users, although many do not even look at these. How much care do users take to check they are not using infringing material of which is not actually owned by them? It is often the case that people do not know what they are signing up for. There are so many conflicting pressures surrounding the issues of copyright, privacy and other human rights, it's no wonder the government has attempted to act upon copyright infringement using a "stick" approach.

The Rat Race...

Contrast this with the so called "carrot" approach. Recently, many copyright holders, such as record labels and film studios, have tried to clamp down on the unlawful sharing of their works over the internet. Before this crackdown by copyright holders, many people would try to find different avenues for downloading information at no cost at all even though they were clearly infringing copyright. However, the establishment of "iTunes" and other similar services providing access to music and file downloads at a relatively small charge and at the users' choice has proven to be successful. The perception of using services such as iTunes is not only easy and trendy, but most importantly, it is a legitimate way of downloading, as ultimately you are paying for the right to use the musician's material. Even Napster, (which was shut down many years ago) has, in its new form, adopted a business model which incorporates a monthly subscription fee for the streaming of songs in order to cover royalty costs to allow legitimate licensing of copyright.

So it seems there is plenty of interest in persuading these alternatives that assist in combating copyright issues without the need for the harsh punishment of the "stick" approach. Another example of a softer "carrot" approach is Red Lambda, a company who are looking to float on AIM. Red Lambda is a company that makes software to prevent illicit P2P file sharing and allow network administrators to control the level of compliance within their network. Providing such services may certainly increase the responsibility of online users and their actions.

It appears that these business models are attempting to address the problematic areas, by attempting to ensure that copyright issues and human rights meet in a less controversial way.

Who will win?

So the question is, who will win the race? The cat or the mouse? The "stick" approach or the "carrot" approach?

Of course, there is no definite way to predict the outcome. Inherently, the "carrot" approaches, whether old or new, may not be enough to dissuade people from infringing copyright, hence the introduction of the Bill, which some see as crossing the boundaries in relation to human rights.

In effect, the two models are attempting to achieve the same objectives, which is to protect, not only copyright holders, but also the human right to privacy and freedom. Therefore, they should be working "with" each other, rather than "against" each other.

Something to ponder over...

On a separate point, recent cases such as OiNK have produced an outcome which seems to work against the objectives of the Bill. Alan Ellis, the founder of a music file sharing website was acquitted on a charge of "conspiracy to defraud", due to the difficulty in proving "beyond reasonable doubt" that he was acting for a profitable purpose.

Essentially, the issue was that there was no charge for "infringing copyrights", as the website itself did not contain any infringing content. It merely acted as a platform that linked individuals to other websites for them to download unlicensed material.

Therefore, the law as it currently stands, in relation to acting as an "intermediary" or "assisting" others in accessing/using unlicensed material seems to be inadequate. The Bill itself, which arguably has an imbalance between copyright and human rights issues as currently drafted, does not appear address such an issue directly, an issue which may be one of the root causes of the initial copyright problems.

However, the Bill seems to start the ball rolling on increasing the responsibility of users for their online actions. In addition, the recent amendments made to the Bill, reinstating the presumption of innocence and which requires the copyright holder to prove that an actual infringement occurred, may well be welcomed by many.

It appears that the government are now attempting to take a more positive approach towards balancing not only the rights of a copyright holder, but also the human rights of other individuals.

www.rosenblatt-law.co.uk

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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